Daniels v R - [2011] NZCA 234

IN THE COURT OF APPEAL OF NEW ZEALAND

CA573/2010
[2011] NZCA 234

BETWEEN HONE RANKIN DANIELS
Appellant

AND THE QUEEN
Respondent

CA781/2010

AND BETWEEN BEN PENE DANIELS
Appellant

AND THE QUEEN
Respondent

Hearing: 3 May 2011

Court: Wild, Venning and Courtney JJ

Counsel: N M Dutch for Hone Daniels
G Boot for Ben Daniels
K A L Bicknell for Respondent

Judgment: 30 May 2011 at 10.30am

JUDGMENT OF THE COURT

AThe appeal against conviction and sentence by the appellant Hone Rankin Daniels is dismissed.
BThe appeal against sentence by Ben Pene Daniels is also dismissed.

REASONS OF THE COURT
(Given by Wild J)

Introduction

These two appeals were heard together, although the connection between them is remote.
Mr Hone Daniels appeals both against his conviction and sentence. Mr Ben Daniels appeals only against sentence.
At trial in the District Court at Tauranga last July, Mr Hone Daniels was found guilty of threatening to kill while he had a firearm in circumstances that showed he intended to use it in connection with the threat, and on two charges of possession of a firearm without lawful purpose. He was sentenced by Judge Ingram on 19 August last. At the same time, the Judge sentenced Mr Hone Daniels on one charge of burglary and one of receiving. He had earlier pleaded guilty to those charges, which had been transferred from the Hamilton District Court to achieve a single sentencing. The effective sentence imposed was six years imprisonment.
Having pleaded guilty to a charge of receiving, Mr Ben Daniels was sentenced by Judge Tompkins in the Hamilton District Court on 30 September last. The sentences imposed were 150 hours community work and reparation of $620.
The connection between the two appeals is that the appellants are brothers, and Mr Ben Daniels received some of the property stolen in the burglary committed by his brother.

Factual background

The threatening to kill and firearms charges on which Mr Hone Daniels was convicted arose out of the same incident. At sentencing Judge Ingram described the incident in these terms:[1]
At around about 10.30pm on 22 August 2009, you were in the Reclamation car park here in Tauranga, which is the main carpark adjacent to The Strand which is the nightclub entertainment area of Tauranga.
You had been drinking a good deal and approached the complainant, who was talking with one of your brothers. You got into an argument and removed from a vehicle a point .22 calibre semi-automatic rifle, which was loaded. You approached him, pointed the rifle at the complainant and threatened to kill him and to shoot him in the head. You did not do so and eventually returned to the vehicle and swapped the rifle for an air pistol.
You approached the complainant again and made the same kinds of threats, pointing the air pistol at him. You returned to the car, picked up the rifle, again pointed it at the complainant and again threatened to kill him. You did it again with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniels v R

Details

AGLC: Daniels v R [2011] NZCA 234
Case: [2011] NZCA 234
Decision Date: 30 May 2011

CaseChat Overview and Summary

Hone Rankin Daniels and Ben Pene Daniels appealed against their convictions and sentences in the Court of Appeal of New Zealand. Hone Daniels contested both his conviction and sentence, while Ben Daniels appealed solely against his sentence. Hone Daniels was found guilty of threatening to kill while having a firearm, intending to use it in connection with the threat, and two charges of possession of a firearm without lawful purpose. Ben Daniels pleaded guilty to a charge of receiving stolen property. Hone Daniels was sentenced to six years imprisonment, while Ben Daniels received 150 hours of community work and a reparation order of $620. The primary legal issue was whether Hone Daniels' conviction was reliable and whether both appellants' sentences were appropriate.

The court dismissed both appeals. Hone Daniels' conviction was upheld, as the identification procedure followed complied with the Evidence Act 2006. The court also agreed with the sentencing judge's focus on the lethality of the firearms wielded by Hone Daniels. The court found that the starting point of four years imprisonment was appropriate, considering the potential for death or serious injury from discharge of the firearm. As for Ben Daniels, the court concluded that the sentence imposed was appropriate, taking into account the repeated nature of the offending and the lack of remorse shown by Ben Daniels.

Orders